The U.S. Department of Education Office for Civil Rights issued a letter of notification and a revised letter of impending enforcement action that set the Department’s rule to transgender student issues under Title IX in light of the Supreme Court’s decision in Bostock v. Clayton County, Ga (2020) 590 U.S. __ [2020 WL 3146686].
The revised letter of impending enforcement described complaints filed against the Connecticut Interscholastic Athletic Conference, the Glastonbury Board of Education, and five other Connecticut school districts on behalf of three high school student-athletes and their parents. The complaint alleged the Conference’s policy and districts’ practices permitting transgender students to participate on the sports team that matched their gender identity was discriminatory against biologically female student-athletes. Specifically, the student-athletes and parents complained the Conference and districts discriminated against female student-athletes based on sex when they allowed biologically male student-athletes to compete in interscholastic girls’ track in Connecticut. The complaint alleged the policy and practices denied girls opportunities to compete, including in state and regional meets, and to receive public recognition critical to college recruiting and scholarship opportunities. OCR investigated whether these districts denied athletic benefits and opportunities to female student-athletes competing in interscholastic girls’ track through implementation of the Conference’s policy or the districts’ practices, or limited the eligibility or participation of any female student-athletes competing in interscholastic girls’ track through implementation of the policy or practices.
In May, OCR found the actions of the Conference and districts resulted in the loss of athletic benefits and opportunities for female student-athletes in violation of Title IX. OCR also determined that the Conference and districts treated student-athletes differently based on sex by denying benefits and opportunities to female students that were available to male students. However, at that time, OCR stated its interpretation of Title IX in the letter was only applicable to these specific complaints.
In June 2020, the Supreme Court issues its opinion in the Bostock case and held that Title VII of the Civil Rights Act of 1964 protected employees against discrimination because of their sexual orientation or gender identity. However, the Supreme Court held there were circumstances in which a person’s sex was relevant to employment decisions, and distinctions based on the two sexes in such circumstances were permissible because the sexes were not similarly situated. Yet, the Court’s decision specifically did not extend to Title IX.
In light of the Bostock opinion, OCR reviewed its Title IX interpretations and recent letters and determined the Supreme Court’s opinion did not affect its position that Title IX regulations authorized single-sex teams based only on biological sex at birth—male or female—as opposed to a person’s gender identity. Where separating students based on sex is permissible, for example, with respect to sex-specific sports teams, OCR decided the separation must be based on biological sex. Therefore, the Department interpreted Title IX regulations (specifically 34 C.F.R. section 106.41(b), regarding operation of athletic teams “for members of each sex”) to mean operation of teams for biological males and for biological females, and did not interpret Title IX to authorize separate teams based on each person’s transgender status or for members of each gender identity. Accordingly, when an education entity provides “separate teams for members of each sex,” the entity must separate those teams based on biological sex and not based on homosexual or transgender status.
OCR then issued the revised letter to state the letter constituted “a formal statement of OCR’s interpretation of Title IX and its implementing regulations,” which effectively creates a rule OCR will apply in similar cases in the future.
Ultimately, OCR stated it would take further enforcement action against the Conference and districts.
OCR also issued a letter of notification in a case involving Shelby County Schools notifying the parties that OCR will open an investigation into the complaint allegations. This letter also stated that with respect to complaints that an educational entity’s action or policy excluded a person from participation in, denied a person the benefits of, or subjected a person to discrimination under an education program or activity, based on sex, the Bostock opinion guided OCR’s understanding that discriminating against a person based on their homosexuality or identification as transgender generally involved discrimination based on their biological sex.
Read OCR’s letters here.
NOTE:
These letters from OCR could impact current litigation regarding educational entities’ policies regarding transgender student inclusion in facilities and athletic programs. Currently, California state law requires equal treatment of LGBTQ students and employees, but OCR’s interpretation of Title IX regulations could preempt those protections. LCW will continue monitoring developments.